US Supreme Court Appointments – a loophole?

A few days ago, there was a big hue and cry here in the US about a US Supreme Court decision that ruled in a case related to the Second Amendment of the US Constitution – usually referred to as the right to bear arms. They basically ruled that the Washington D.C law banning guns was unconstitutional as it infringed upon the Second Amendment rights of individuals. The second amendment is a fairly hotly debated subject in the US, with gun owners and lobbyists (mostly Republicans, conservatives) on one side , and anti-gun activists (mostly Democrats, conservatives) on the other side. The difference of opinion with respect to the second amendment centers around different interpretations of it i.e. whether it applies to individuals vs. state militia. This new ruling is treated as landmark by many, as they argue that the court as slanted (for the first time?) towards inviduals (and thus gun owners and lobbyists).

But this blog entry is not about this subject of guns and gun control. I have a more fundamental question – about the US Supreme Court Justice’s term. Since the Supreme Court Justice’s appointment is by a politically elected official i.e the President (although must be approved by a majority of the Senate), how come it is for life – i.e. survives the changing political climate in which it was appointed?

I am certainly no student of the US constitution, nor even decently informed about it, and hence this is more a question out of curiosity than anything else. To me, the current setup seems to allow for the possibility of abuse (albeit in circumstances that are sort of rare as a few things have to come into being). I am actually puzzled that the U.S constitution would be structured to even allow for abuse. as I hear it is an extremely well thought out constitution and I generally believe that.

Anyway, doesn’t the current setup provide room for abuse – the kind that is feared (and coveted) by both sides, depending on whether the President, and the majority of the congress are on “your side”? I mean that when George Bush had a Republican majority in the Congress, I heard many a rumblings from conservative commentators about how “we are going to overturn Roe vs. Wade and make it right once in for all”. You also had liberal commentators sound the alarm bell. The two George Bush appointees have certainly made conservative choices on big issues as was expected – very much like the Bill Clinton appointees has made liberal choices. Justice Clarence Thomas who was appointed by George Bush Sr. is extremely conservative, and so is Justice Scalia, who was appointed by Ronald Reagan. It seems that the last four Presidents have appointed justices who are either markedly conservative or markedly liberal – as per the plan, from what I can gather. So it does seem to provide a way for a President to leave behind a legacy that easily outlives his/her term by decades. Although clearly part of the process, this seems like abuse to me.

Hence the burning question as to how come the US Supreme Court Justice’s position is for life when it is appointed by politicians? I do know that a judge can get impeached but it has never happened, and probably never will. For impeachment you need clear evidence of ethical misconduct etc. It seems that the makers of the constitution somehow did not perceive any possibility of misuse with such appointments – the kind that seems to have happened.

Did they assume that Presidents won’t abuse it even when situation may tempt one to do do?

Did they somehow assume that Presidents would weigh the gravity of such appointments appropriately and thus put themselves above partisan politics etc.? In other words, did they think all Presidents would be men/women of great honor and dignity, and above being influenced by minions?

Did they not foresee their country ever being so divided as it has been for the last 15 years, a divisiveness that can plague even the top politicians? For issues like abortion, gun control, there are two warring factions, and they will do anything to win – so it seems.

Or is it just that, that the current means of appointment is just the most practical solution one can come up with? I mean, you cannot have the justices being “elected” like politicians. You can put a term – but how long? As long as the President? That would make it even more bogus – as it would be just as political. The fact that (a) some judge has to first to retire during a President’s term (b) the President needs a favorable majority in Congress (c) Needs to worry about political fallout – maybe they thought this was enough deterrent against abuse?

But still I would think the constitution should/would have shut the door shut more firmly. Perhaps, the makers of the constitution just underestimated how power can corrupt humans, and thus overestimate politicians?

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One Response to “US Supreme Court Appointments – a loophole?”

Occassionally you will hear rubmlings about tenures in the court – most notable was last year I think with both Roberts and Alito in their 50s.

BTW (technically) the President with the Senate appoints the judges. Back in the day I am sure the frames wanted to keep a totally independent judiciary so it sort of made sense to have lifetime tenures.

But even they could not have foreseen that some of these guys live a long long time. I forget which judge (stevens i think) is almost 90 and is on the bench for over 3 decades!!!

Given the amdendment that is likely required, i think this will remain academic. Also, kinda makes it fun that every appt will be a big spectacle (like Robert’s or Aalito’s) – For Roe v Wade, only one more vote is required (Scalia, Roberts, Alito, Thomas – all very young BTW!!!) to make it a guarantee 5 for the majority w/o swing vote and this will be repealed